Tuesday, December 15, 2015

Some years ago I cowrote a book that included some original optical illusions. One illusion in particular became an issue of legal dispute. Some chemicals in my brain (Tetrahydrocannabinol) claimed to be ultimately responsible for the works and claimed, therefore, that my publication of the illusion was copyright infringement. As they were threatening to sue, we filed a preemptive suit for a declaration of non-infringement. The artwork can be seen on Akiyoshi Kitaoka's site labeled the "Bloch-Gafter's effect". The district court found in our favor due to the opposing party not being represented at the hearing. However, on appeal the decision was upheld on the strength of the case, and the decision is now a precedent. The ninth circuit court of appeals found that a copyrightable work produced as a result of the influence of chemicals in a person's brain and body are to be treated as a work made for hire, as it is "a work prepared by an employee within the scope of his or her employment", under the principles outlined by the Supreme Court:

In determining whether a hired party is an employee under the general common law of agency, we consider the hiring party's right to control the manner and means by which the product is accomplished. Among the other factors relevant to this inquiry are the skill required; the source of the instrumentalities and tools; the location of the work; the duration of the relationship between the parties; whether the hiring party has the right to assign additional projects to the hired party; the extent of the hired party's discretion over when and how long to work; ...

We were awarded costs but, alas, have so far been unable to collect.

The upshot of this legal decision is that a person can be treated as the author of works produced by that person, even though the responsibility for producing the work is shared among parts of the person's body not under their direct supervision.

This settles a question raised on A recent Free Will, Science, and Religion Podcast : can a person reasonably claim authorship of decisions when those decisions are a result of processes in their body (such as chemical reactions) not fully under their control? The answer, it turns out, is yes.

About Me

Neal Gafter is a Computer Programming Language Designer, Amateur Scientist and Philosopher.
He works for Microsoft on the evolution of the .NET platform languages.
He also has been known to Kibbitz on the evolution of the Java language.
Neal was granted an OpenJDK Community Innovators' Challenge award for his design and
implementation of lambda expressions for Java.
He was previously a software engineer at Google working on Google Calendar, and a senior staff engineer at Sun Microsystems,
where he co-designed and implemented the Java language features in releases 1.4 through 5.0. Neal is coauthor of
Java Puzzlers: Traps, Pitfalls, and Corner Cases (Addison Wesley, 2005). He was a member of the C++ Standards
Committee and led the development of C and C++ compilers at Sun Microsystems, Microtec Research, and Texas Instruments.
He holds a Ph.D. in computer science from the University of Rochester.